Opinion
2011-09-22
In the Matter of Johnathan JOHNSON, Appellant,v.Harry J. CORBITT, as Superintendent of the New York State Police, et al., Respondents.
Johnathan Johnson, Malone, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for Harry J. Corbitt and others, respondents.Derek P. Champagne, District Attorney, Malone (Joshua S. Vinciguerra, New York Prosecutors Training Institute, Inc., Albany, of counsel), for Derek P. Champagne, respondent.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered November 3, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted certain respondents' motion to dismiss the petition.
Petitioner, a prison inmate, was served with a misbehavior report in March 2008, in which he was alleged to have thrown urine in the face of a correction officer. As a result, the officer filed criminal charges and testified before a grand jury, after which petitioner was indicted on the charge of aggravated harassment of an employee by an inmate. Ultimately, respondent Franklin County District Attorney declined to continue the prosecution. Shortly thereafter, petitioner, alleging that false criminal charges had been filed against him, sent a letter to the District Attorney requesting that he press criminal charges against the officer. Petitioner also sent letters to respondent Commissioner of Correctional Services, and respondent Inspector General of the Department of Correctional Services, requesting that appropriate action be taken. Thereafter, in July 2010, petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to arrest and prosecute several correction officers for filing false police reports and falsifying business records and reports. The Commissioner, Inspector General and respondent Superintendent of State Police moved to dismiss the petition for failure to state a cause of action and the District Attorney, in his answer, requested the same relief. Supreme Court dismissed the petition and petitioner now appeals.
We affirm. The writ of mandamus is an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought ( see Matter of Morrison v. Hynes, 82 A.D.3d 772, 772–773, 917 N.Y.S.2d 908 [2011]; Matter of Barnwell v. Breslin, 46 A.D.3d 990, 991, 846 N.Y.S.2d 480 [2007] ). Inasmuch as the decision whether to prosecute a particular suspect is entrusted to the unfettered discretion of the District Attorney, mandamus does not lie ( see Matter of McTootle v. Rice, 60 A.D.3d 1068, 1068, 875 N.Y.S.2d 811 [2009], lv. denied 13 N.Y.3d 705, 2009 WL 2925321 [2009];
Matter of Cantwell v. Ryan, 309 A.D.2d 1042, 1042–1043, 766 N.Y.S.2d 135 [2003], affd. 3 N.Y.3d 626, 782 N.Y.S.2d 394, 816 N.E.2d 183 [2004] ).
Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.
ORDERED that the judgment is affirmed, without costs.
MERCURE, J.P., PETERS, LAHTINEN, MALONE JR. and McCARTHY, JJ., concur.